Peers and clients say:
"Loukas is a strong and sought-after arbitrator"
"He has a deep knowledge of this area of law"
"He has a brilliant mind"
Professor Loukas Mistelis is a partner with Clyde & Co LLP, and the Clive Schmitthoff Professor of Transnational Commercial Law and Arbitration at Queen Mary University of London. Loukas is an acknowledged authority on international dispute resolution and investment treaty law.
He acts as counsel and regularly sits as an arbitrator and acts as expert. His substantial arbitration experience covers ad hoc (UNCITRAL, PCA) and ICC, ICSID, LCIA, SCC, GCC, Swiss Chambers and Emergency Arbitrator proceedings. Subject matters include foreign investment, aviation, construction and infrastructure, energy, transport, concessions, distribution, finance, privatisation, defence, mining, natural resources, real estate, and sales contracts.
What inspired you to pursue a legal career? How has the arbitration market changed since you first started practising?
I am the first lawyer in my family so my perceptions of a legal career as a teenager were formed by books and popular culture. I was drawn to international law from a very young age and went to law school because I wanted to practice international law. At law school it became clear to me by many inspirational professors that most practice of (both public and private) international law was in arbitration, which was then rapidly developing. Even as a student, when I interned at law firms, the cases I worked on had international law elements. In the last 30 years I mostly practiced part-time, combined with academia. In the last 25 years, I have been fortunate that my practice has been exclusively in arbitration.
The arbitration market has evolved a great deal in the last 25 years; it is a more open and inclusive market (what I coin, democratisation) with all the opportunities and challenges associated with this transition. In addition to highly specialised practitioners, there are many new entrants who bring about both a new level of energy but also their own legal culture baggage formed in domestic litigation. A new consensus of what international arbitration is or ought to be is slowly emerging.
In your opinion, what aspect of arbitration practice is evolving the quickest?
Arbitration is evolving in so many ways but, in my experience, what rapidly develops is the capacity of states to be involved in international arbitration either by representing themselves directly or in conjunction with local and international law firms. Not only in investment arbitration, but also in commercial arbitration, states, state-owned enterprises, and sovereign wealth funds are major players, both as claimants and as respondents. In the last decade, states have been reassessing and developing models of legal representations – state only, state in conjunction with law firms, a concept of a panel and others. We should expect major developments in this area. I also expect, not only in the context of cases involving states, that the way legal fees are charged may also have to change with more fixed fee or capped fee arrangements.
How are arbitration institutions incorporating recent advances in technology?
Arbitral institutions have been following and embracing technology for quite some time. For example, AAA-ICDR and ICC have had some form of IT-based case management or online platforms for submissions for some 20 years including the use of specialist technology procedural protocols. ICSID and SCC have had this as the norm for the last five-10 years. Covid-19 has been a catalyst for investment in technology and virtual hearings. There are now significant advances in case and document management, including with the use of AI. In my opinion, institutions no longer follow developments but they actively shape the future in this regard.
Why do you think arbitration clauses are becoming increasingly popular in commercial contracts?
Arbitration is the most-preferred neutral dispute resolution method. While many national courts have improved their services, they are part of a national system and foreign parties may have concerns as to their neutrality. Arbitration is an entirely private system of adjudication (with limited and regulated interaction with national courts) and it is a natural forum for the settlement of cross-border commercial disputes.
In what ways are ICSID’s new regulations affecting investor state arbitration proceedings?
ICSID has responded to concerns about the legitimacy of ISDS. Consequently, there is now increased transparency and a more efficient process: there are more checks and balances in respect of frivolous and unmeritorious claims as well as a code conduct for arbitrators. Therefore, it comes as no surprise that ICSID receives a very large number of new cases, almost three-and-a-half cases average per month this year. Investors have always trusted ICSID, and notwithstanding current reform works, a very good number of states also support the ICSID system.
What challenges are posed by international arbitrations involving ESG matters?
The arbitration community has been quite responsive to ESG matters. However, we see such matters being brought before courts as there are only few arbitration agreements which cover ESG matters. Still, this is a direction of travel and ESG matters will come more frequently before tribunals in the not-so-distant future, partially as state defences in ISDS cases or claims brought against major multinational companies.
Pricing disputes have risen dramatically around the world due to the war in Ukraine, rising inflation and labour shortages. What are the key elements for arbitration specialists in such pricing disputes?
Price valuation clauses and pricing disputes have been around for several years. The last 18-24 months, however, brought about a war, inflation, supply chain disruptions, shortages of labour but also access to commodities and energy resources. Arbitration lawyers involved in pricing disputes should have a good understanding of markets and economics and understand how the allocation of roles and tasks between experts and arbitration tribunals work. It is also useful to have familiarity with industries and geographical regions where pricing disputes arise.
You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished? What excites you most about the future of arbitration?
I have been fortunate to work as expert, counsel and arbitrator in a very diverse range of cases, including several high profile ISDS, energy, construction, M&A, defence, finance and commercial disputes. I am yet to be involved in a state-to-state arbitration although I came close to getting involved in one such dispute a few years ago. As arbitration grows and becomes more democratic, I am enthusiastic about working with new entrants in the profession especially from jurisdictions where arbitration just emerges. It is very reassuring that there is a lot of undiscovered talent in arbitration.